• Steve Brown

When is a supervisor not a supervisor, and an incumbent not an incumbent?

Mojave Watch has been interested in the possible ramifications of listing Dawn Rowe as the incumbent in the race for the Third District Supervisor position in San Bernardino County after a 2019 Superior Court ruling that her 2018 appointment was "null and void" after finding the Board of Supervisors violated state law during the appointment process. Rowe halted conducting official duties as supervisor for a time, only to have a California Supreme Court decision allow her to remain in office while the case is appealed. San Bernardino County's Board of Supervisors (the same supervisors found by the lower court to have violated the law during the appointment process) has reportedly allocated up to $500,000 of county taxpayer funds to appeal the ruling that the Board of Supervisors violated the Brown Act during Rowe's appointment process, instead of accepting the Superior Court decision.

But if her appointment is, in fact, "null and void," and the lower court ruling is upheld, how could Rowe be listed as the incumbent on the primary ballot, especially since being listed as an incumbent provides an advantage in an election?

David Wert, Public Information Officer for San Bernardino County, responded, "Rowe’s ballot designation is not “incumbent” rather it is 'San Bernardino County Supervisor.' A ballot designation may be based on the primary source of a candidate’s income during the previous 12 months per Elections Code sections 13107(a)(3) and 13107(d). Attached is the Notice of Entry of Order from the California Supreme Court staying the 'court decision.'"

The order from the California Supreme Court staying the lower court ruling on January 23, 2020, does not make mention of Rowe's electoral status or provides any details or directions, only stating that the previous decision has been stayed pending further order of that court. Obviously, listing Rowe as San Bernardino County Supervisor is, in all practicality, virtually the same thing as listing her as the incumbent in this election.

Being listed as holding the position being voted upon is, in fact, listing Rowe as the incumbent, and would be likely seen as such by voters. While a ballot designation may be derived from a candidate's primary source of income during the previous year, if that candidate was illegally appointed to the position wherein they earned that income, whether that income should count toward the ballot designation is likely not something that was considered when the Elections Code was drafted.

Asked about what could happen if Rowe wins one of the top spots in the primary election, as is likely, and then the court ruling is upheld prior to the November election nullifying her initial appointment, meaning she ran as the incumbent in the primary when she technically was not, Wert noted only that, "The County cannot forecast the outcome of any election nor the outcome of any legal action."

While Rowe could win the supervisor race in March, listed as the incumbent, with the number of candidates running, even if she leads it is likely she could face an opponent in November. In order to avoid the run-off in November, Rowe would have to receive 50% of the primary election vote, plus one. It is unclear that should the court ruling that voided Rowe's appointment be upheld prior to the November election, whether her likely primary win could be endangered by her listing on the primary ballot as the incumbent. Asked about candidate fundraising under these uncertain circumstances, Wert deferred to the state's Fair Political Practices Commission.

Incumbents generally enjoy an electoral and fundraising advantage. Undecided voters may decide to support an incumbent because they believe that person has already been elected to the position. In Rowe's case, she was appointed, and, according to the Superior Court's decision, appointed illegally by the Board of Supervisors. But on the March 3, 2020 primary ballot, that detail is missing, and she is, for all intents, listed as the incumbent for the Third District Supervisor position.

When these questions were noted on social media by Mojave Watch, a response indicated the kind of confusion this scenario has created. One individual commenting was confused, thinking the stay of the court ruling allowing Rowe to continue serving as supervisor while her case is appealed meant instead that the court had overturned the initial ruling. With spotty media coverage of Rowe's appointment and subsequent court rulings across the Third District, it is easy to see how misunderstandings can occur about this case. Listing Rowe as the incumbent on the 2020 primary ballot, whether or not that was the intent by San Bernardino County's Registrar, appears to be at least partially misleading, and perhaps unavoidably so. How this may impact the November election remains to be seen.

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